In order to have a judge issue a restraining order against someone, the petitioner (the person asking for protection) has to prove, by a preponderance of the evidence, that he or she is in fear of imminent threat of bodily injury.
Known as a “209A,” these civil orders are the documents that are oftentimes the first step toward domestic violence criminal charges.
The application for and issuance of a restraining order is actually a civil action, not a criminal action. It is the violation of that civil order that is criminal.
Interestingly, the issuance of a restraining order (even if it gets vacated without any criminal charges as a result of it) appears on your criminal record.
The restraining order statute allows someone to apply for one and be issued one without the person against whom it is issued even knowing that it is happening. This is known as an “emergency” order.
However, the court has to notify the person against whom the order is issued and hold a hearing within 10 days of the emergency order issuing.
It is at that hearing that the defendant can challenge the issuance and potential extension of the restraining order. The judge can extend the restraining order for up to one year.
It is at that 10 day hearing where you should have an attorney with you, to challenge the extension of the restraining order. The affidavit (sworn statement) that the petitioner filled out should be thoroughly reviewed in preparation for the hearing. At the hearing, the judge will ask the petitioner if everything contained in the affidavit is true. Then, the judge will ask the petitioner if he or she wants the restraining order extended and for how long. Finally, the judge willl ask if there is anything the petitioner would like to add by way of testimony.
You, then, get to defend against the extension, first through cross examination of the petitioner. Criminal Defense Attorney Thomas Kokonowski has a proven track record of being a viscious cross examiner. His questions are designed to exploit every weakness and outright lie contained in the petitioner’s affidavit and testimony. You are also allowed to call witnesses on your own behalf and introduce any relevant evidence. Finally, you can testify about what actually happened. It is extremely important to have an experienced lawyer on board when making this decision. Remember…THIS HEARING IS AUDIO RECORDED AND EVERYTHING YOU SAY CAN POSSIBLY BE USED AGAINST YOU IF THERE ARE CRIMINAL CHARGES THAT ARE PENDING AS A RESULT OF THESE ALLEGATIONS. You must be very careful when deciding whether or not you should testify.